Supreme Court Rules Against Putting Foreign Works Back in Public Domain

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In a 6-2 decision, the high court finds that the U.S. Constitution's promise to promote arts and sciences gives Congress the right to enter into an international treaty allowing foreign right-holders to restore copyright authority on some works that were previously in the public domain.

The United States Supreme Court has rejected arguments that millions of copyrighted foreign works should be restored to the public domain. In a majority opinion issued today in Golan v. Holder, Justice Ruth Bader Ginsburg ruled that Congress had the authority to bless an international treaty to "serve the objectives of the copyright clause."

In 1994, the United States led an international treaty in Uruguay that harmonized intellectual property laws around the globe. In the hopes of receiving reciprocal protection on U.S. based works, the country allowed many foreign-based works, which had slipped out of copyright protection, to be once again protected.

This led to many objections.

The initial challenge came from an orchestral conductor named Lawrence Golan, who wished to create a derivative work based on compositions by Russian composer Dmitri Shostakovich. He was joined by educators, performers, publishers, film archivists, and some motion picture distributors upset that they could no longer make full use of many early-to-mid 20th century foreign masterpieces from artists like H.G. Wells, Fritz Lang,and Frederico Fellini.

At a hearing in October, the Golan parties argued that the treaty violated the U.S. Constitution's promise to "promote the progress of science and useful arts" by enjoining creative activity. In turn, the government, supported by large Hollywood companies and trade associations, argued there was a national interest to being part of the international copyright system.

In the majority decision today, Justice Ginsburg accepts the government's position and makes an important notation about what the U.S. Constitution has to say about copyright law. "Nothing in the text of the Copyright Clause confines the 'Progress of Science' exclusively to 'incentives for creation,'" she writes."Evidence from the founding, moreover, suggests that inducing dissemination—as opposed to creation—was viewed as an appropriate means to promote science."

The language above could impact the ongoing debate between the tech and entertainment sectors over the evolution of copyright enforcement in the country.

Ginsburg continues by saying:

"Considered against this backdrop, §514 [of the Uruguay treaty] falls comfortably within Congress’ authority under the Copyright Clause. Congress rationally could have concluded that adherence to Berne 'promotes the diffusion of knowledge.' A well-functioning international copyright system would likely encourage the dissemination of existing and future works."

Ginsberg also advised that there were still protections in place to make use of many of these foreign works. For example, she says that parties can continue to exploit a restored work until the owners gives notice of an intent to inforce, and that the treaty leaves undisturbed any fair uses of copyrighted works.

Justice Kagan recused herself, and Justices Breyer and Alito formed the minority.

In Justice Stephen Breyer's dissent, he says that progress won't be served by allowing foreign rightsholders to reclaim authority over these works. The treaty "does not encourage anyone to produce a single new work," he writes. "By definition, it bestows monetary rewards only on owners of old works - works that have already been created and already are in the American public domain."

Legal practitioners have been digesting today's development.

"The result in Holder is not surprising in light of the United States' interest in complying with its treaty obligations under the Berne Convention, especially because the restored copyrights only fell into the public domain as a result of technical violations that don't exist today," says Aaron Moss at Greenberg Glusker. "What is more surprising is the breadth of the Court's opinion, suggesting that no public domain work may ever be off limits for future copyright protection."

The MPAA has also weighed in:

"Today’s ruling demonstrates that the United States fulfills its international copyright obligations and will remain a world leader in protecting creative works, thereby helping foster their continued creation and dissemination. This decision is particularly significant because the Supreme Court has specifically recognized that the underlying purpose of copyright protection is not only to incentivize the creation of new works, but also to encourage their distribution.”